In a notorious case, Army Sgt. Bowe Bergdahl presently faces court-martial charges of desertion and misbehavior before the enemy, the latter of which carries up to a life sentence. Bergdahl is known to have walked off his post in Afghanistan in 2009. He was then captured and held captive by the Taliban until 2014 at which time the Obama administration won his release by swapping him for several Taliban detainees. Bergdahl is now back in the U.S. waiting to stand trial for his offenses in February 2017. Bergdahl, like any member of the United States Armed Forces faced with a court-martial, is entitled to a skilled defense by a highly competent court-martial defense attorney. Attorneys working on Bergdahl’s defense are trying to derail the case against him by arguing that U.S. Sen. John McCain improperly swayed military decision-makers by making public comments on the case.
McCain’s Remarks
After an officer who participated in a preliminary hearing of the Bergdahl case in September 2015 recommended that the case be heard by a misdemeanor-level tribunal, declaring that imprisonment was not warranted, McCain told a reporter that, “If it comes out that (Bergdahl) has no punishment, we’re going to have to have a hearing in the Senate Armed Services Committee.” A few weeks later, Gen. Robert B. Abrams sent Bergdahl’s case to a general court-martial, clearly disregarding the hearing officer’s recommendation.
According to Bergdahl defense attorney, Eugene Fidell, McCain both violated Bergdahl’s due process rights and failed to comply with military law prohibiting “unlawful command influence.” Fidell stated that McCain, as a retired naval officer, remains subject to the Uniform Code of Military Justice. Fidell argues that, due to the “impermissible meddling” of McCain, who chairs the Senate Armed Services Committee and so wields power over top military commanders, the judge should either throw out the charges against Bergdahl or rule that he will face no further punishment if convicted.
In coming to Bergdahl’s defense, his attorneys have revealed emails from Army officials to Senate committee staff asking McCain to retract his statements. According to the Army Office of the Chief of Legislative Liaison, Mc Cain’s statements were causing “serious concerns across the Army” because it was feared that the statements could help Bergdahl show unlawful command influence.
The Controversy in a Nutshell
The prosecutor insists that Senator McCain “doesn’t possess the mantle of command” and should therefore not be found to be guilty of “unlawful command influence.” He further states that there is a lack of legal precedent for this legal view. Defense Attorney Fidel counters that the absence of legal precedent is only evidence of how outrageous McCain’s remarks were, declaring that “Until last October no retired person subject to the code who was elected to Congress has ever had the chutzpah to do what Sen. McCain did.”